Raleigh Improvement Co. v. Andrews ( 1919 )

This is a petition to rehear this cause decided at Fall Term, 1918, and reported in 176 N.C. 281. Upon careful consideration of the case, we adhere to all that is said in our former opinion, except to the extent that on the next trial the defendants may offer all evidence of abandonment which they may have, irrespective of what is said in paragraph number 2 of our former opinion. We will not undertake to say that there is no evidence of an abandonment of the purpose to erect an apartment house. At the time the subscription to the stock was made, on 17 February, 1914, it is not contended that the purpose to erect the apartment house had been abandoned. It is claimed that it was abandoned later on in the year 1915. We leave this as an open question to be determined at the coming trial.

In our former opinion we said: "It is true that on being satisfied that stockholders have paid in an amount equal to their engagements, so as to make the burden equal amongst them all, a court of equity will sometimes interfere in case of an abandonment of the undertaking to prevent further calls upon such stockholders, but no such conditions appear to be presented upon this record and no such equitable relief is asked."

This question of abandonment becomes important in case the defendants desire to ask equitable relief upon the (329) grounds set out in the opinion, and if so, they will be allowed to file additional pleadings setting it up, in which case proper issues may be submitted to the jury.

Petition to rehear dismissed.